Exhibit 10.37
[Execution Copy]
FOURTH AMENDMENT TO LOAN AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AGREEMENT (herein called the
"Amendment") dated as of December 19, 2000 (the "Amendment Closing Date"), by
and among Hispanic Television Network, Inc., a Delaware corporation
("Borrower") and Xxxx Xxxxx Strategic Partners, L.P. and GAINSCO, Inc.,
representing Majority Lenders, as defined in the Original Loan Agreement
defined below.
W I T N E S S E T H:
WHEREAS, Borrower, Majority Lenders and the other Lenders set forth
therein entered into that certain Loan Agreement dated as of July 25, 2000,
and have most recently entered into that certain Third Amendment to Loan
Agreement and Agreement dated as of December 15, 2000 (such Agreement, as
amended, supplemented or modified to the date hereof, the "Original Loan
Agreement"), for the purpose and consideration therein expressed, whereby
Lenders became obligated to make loans to Borrower as therein provided;
WHEREAS, Borrower and Majority Lenders desire to amend the Original
Loan Agreement for the purpose set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Loan Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS AND REFERENCES
Section 1. TERMS DEFINED IN THE ORIGINAL LOAN AGREEMENT. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Original Loan Agreement shall have the same meanings
whenever used in this Amendment.
Section 1. OTHER DEFINED TERMS. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"AMENDMENT" means this Fourth Amendment to Loan Agreement.
"LOAN AGREEMENT" means the Original Loan Agreement as amended
hereby.
ARTICLE II.
AMENDMENT TO ORIGINAL LOAN AGREEMENT
Section 2. MANDATORY PREPAYMENTS. Section 2.5(a) of the Original
Loan Agreement is hereby deleted in its entirety and replaced with the
following:
(a) The Company has issued warrants with an exercise
price of $2.00 per share of common stock of the Company pursuant to a
private placement effective as of December 15, 1999 (such warrants,
together with any additional or replacement securities issued on
account thereof, the "$2.00 Warrants"). Schedule 2.5 sets forth the
warrantholders of the $2.00 Warrants and the number of $2.00 Warrants
held by each such warrantholder as of the date of this Agreement. If at
any time on or after the date of this Agreement any warrantholder
exercises any such $2.00 Warrants, the Company shall prepay to the
Lenders (pro rata in accordance with Section 2.4) a portion of the
principal of the Loans by an amount equal to the "Warrant Proceeds" (as
defined below) as follows:
(i) FIRST, until the Company receives cumulative
Warrant Proceeds equal to $2,000,000, the Company shall not be
required to prepay to the Lenders any Warrant Proceeds; and
(ii) SECOND, after such time as the Company has
received cumulative Warrant Proceeds in excess of $2,000,000,
the Company shall prepay to the Lenders fifty percent (50%) of
all additional Warrant Proceeds (I.E., 50% of all Warrant
Proceeds in excess of $2,000,000).
As used in this Section 2.5(a), the term "Warrant Proceeds" shall mean
all proceeds received by the Company pursuant to all exercises of the
$2.00 Warrants. With respect to all prepayments of Warrant Proceeds
required pursuant to this Section 2.5(a), the following provisions
shall apply:
(A) The Company shall prepay such Warrant
Proceeds within three business days of the Company's receipt
thereof, provided that the Company may delay payment of such
Warrant Proceeds until such time as the aggregate Warrant
Proceeds payable at such time pursuant to Section 2.5(a)(ii)
shall equal or exceed $50,000.
(B) If the Company is not otherwise required to
pay any such Warrant Proceeds to the Lenders pursuant to
Section 2.5(a)(i) (because the Company has not yet received
$2,000,000 in Warrant Proceeds) or the immediately preceding
subsection (A) (because the Warrant Proceeds currently payable
do not equal or exceed $50,000), the Company shall
nevertheless provide notice to the Lenders of the amount of
Warrant Proceeds it has received on account of the exercise of
any $2.00 Warrants.
(C) Pending payment of such Warrant Proceeds to
the Lenders, the Company shall not expend or commit to expend
such Warrant Proceeds for any other use.
ARTICLE III.
CONDITIONS OF EFFECTIVENESS
Section 3. EFFECTIVE DATE. This Amendment shall become effective when,
and only when:
(a) Majority Lenders shall have received, at Majority Lenders'
office, a counterpart of this Amendment executed and delivered by Borrower; and
(b) Majority Lenders shall have received such other supporting
documents as Majority Lenders may reasonably request.
Section 3. EXPENSES OF COUNSEL. In connection with this Amendment, the
Company shall have the obligation to reimburse the Majority Lenders for the fees
and expenses of their counsel in the amount of $2,000. The Company shall pay
this amount to Majority Lenders on or prior to January 31, 2001.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4. REPRESENTATIONS AND WARRANTIES OF BORROWER. In order to
induce Majority Lenders to enter into this Amendment, Borrower represents and
warrants to each Lender that:
(a) The representations and warranties contained in Article III
of the Original Loan Agreement are true and correct at and as of the time of
the effectiveness hereof, except to the extent that the facts on which such
representations and warranties are based have been changed by the extension
of credit under the Loan Agreement.
(b) Borrower is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to borrow monies and
to perform its obligations under the Loan Agreement. Borrower has duly taken
all corporate action necessary to authorize the execution and delivery of
this Amendment and to authorize the performance of the obligations of
Borrower hereunder and thereunder.
(c) The execution and delivery by Borrower of this Amendment,
the performance by Borrower of its obligations hereunder and the consummation
of the transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the certificate of
incorporation and bylaws of Borrower, or of any material agreement, judgment,
license, order or permit applicable to or binding upon Borrower, or result in
the creation of any lien, charge or encumbrance upon any assets or properties
of Borrower. Except for those which have been obtained, no consent, approval,
authorizationor order of any court or governmental authority or third party
is required in connection with the execution and delivery by Borrower of this
Amendment or to consummate the transactions contemplated hereby.
(d) When duly executed and delivered, this Amendmentwill be a
legal and binding obligation of Borrower, enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency or similar laws of general
application relating to the enforcement of creditors' rights and by equitable
principles of general application.
ARTICLE V.
MISCELLANEOUS
Section 5. RATIFICATION OF AGREEMENTS. The Original Loan Agreement,
as hereby amended is hereby ratified and confirmed in all respects. The Loan
Documents, as they may be amended or affected by this Amendment, are hereby
ratified and confirmed in all respects. Any reference to the Loan Agreement
in any Loan Document shall be deemed to be a reference to the Original Loan
Agreement as hereby amended. The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of Lenders under the Loan Agreement or
any other Loan Document nor constitute a waiver of any provision of the Loan
Agreement or any other Loan Document.
Section 5. SURVIVAL OF AGREEMENTS. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting ofthe Loans, and shall further survive
until all of the Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by Borrower hereunder or
under the Loan Agreement to any Lender shall be deemed to constitute
representations and warranties by, and/or agreements and covenants of,
Borrower under this Amendment and under the Loan Agreement.
Section 5.3. LOAN DOCUMENTS. This Amendment is a Loan Document, and
all provisions in the Loan Agreement pertainingto Loan Documents apply hereto
and thereto.
Section 5.4. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance the laws of the State of Texas and any applicable
laws of the United States of America in all respects, including construction,
validity and performance.
Section 5.5. COUNTERPARTS; FAX. This Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute
one and the same Amendment. This Amendment may be validly executed by
facsimile or other electronic transmission.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
BORROWER:
HISPANIC TELEVISION NETWORK, INC.
By: /s/ Xxxxxxxx Xxxx
--------------------------
Xxxxxxxx Xxxx
Chief Financial Officer and Secretary
MAJORITY LENDERS:
XXXX XXXXX STRATEGIC PARTNERS, L.P.
By: GMSP Operating Partners, L.P., its general partner
By: GMSP, L.L.C.
By: /s/ J. Xxxxxxx Xxxxxxx
-----------------------------
J. Xxxxxxx Xxxxxxx, Principal
GAINSCO, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
